418 U.S. 717 (1974), argued 27 Feb. 1974, decided 25 July 1974, by vote of 5 to 4; Burger for the Court, Stewart concurring, Douglas, White, Marshall, and Brennan in dissent. In School Board of Richmond v. State Board of Education (1973), an equally divided Court—with Justice Lewis Powell not participating—was unable to decide whether a district court could require the merger of three school districts in order to eliminate racial segregation in one. A year later, in Milliken v. Bradley, a bitterly divided Court ruled 5 to 4 that segregated practices in one district did not warrant relief that included another non-segregating district. Thus, the Court that had implicitly extended Green v. County Board (1968) integration to the North only thirteen months before in Keyes v. School District No. 1 (1973) drew the remedial line at the offending school district's boundary. For the first time since even before Brown v. Board of Education (1954), the Court refused to endorse a desegregation remedy sought by the National Association for the Advancement of Colored People (NAACP), which had developed the litigation strategy attacking the constitutionality of Jim Crow schools beginning in the mid-1930s.
The Detroit school district, then fifth largest in the nation, covered 140 square miles; at the time of the suit in 1970, its school population of almost 290,000 was 65 percent black and 35 percent white—a substantial recent growth in black population owing to white flight to nearby suburbs; for the metropolitan area, the proportion of black to white student population was 19 to 81 percent. The district court found that the Detroit school district had engaged in segregative practices and concluded that the only way to achieve Green-mandated establishment of a unitary school system was to order busing that included some of the surrounding suburban districts. The court of appeals affirmed, fearing that not to do so would “nullify Brown v. Board of Education (1954)” and restore the “separate but equal doctrine” of Plessy v. Ferguson (1896) (p. 249).
Chief Justice Burger, who wrote the Swann v. Charlotte-Mecklenburg County Board of Education (1971) opinion and affirmed the lower courts on the basis of the fit between constitutional violation and corresponding remedy, wrote for the narrow majority. His statement of the issues in Milliken signaled its outcome: “[may a federal court] impose a multi-district, area-wide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that boundary lines of any affected school district were established with the purpose of fostering racial segregation [and] absent any finding that the included districts committed acts which affected segregation within the other districts” (p. 721).
Since the suburban districts had not caused or contributed to the violation, they logically could not be part of the remedy without a “drastic expansion of the constitutional right itself, an expansion without support in either constitutional principle or precedent” (p. 747). The chief justice may have been right but the difficulty was that the same thing could have been said of the nature of the desegregation cases from the beginning.